END-USER TERMS OF SERVICE
(FOR CUSTOMER SALES INVOLVING A GOTO PARTNER)
These End-User Terms of Service (“End-User Terms”) apply to your use of Services (defined below) where purchased from or invoiced through one of our partners.
These Terms are a legal agreement between the person or organization agreeing to them (“Customer,” “you,” or “your”) and the applicable contracting entity or entities at https://www.goto.com/company/legal/contracting-entities ("GoTo,” “us,” “we,” or “our”). By accepting these End-User Terms and/or using the Services, you represent that you are of legal age and have the authority to bind the Customer to these End-User Terms, including all referenced documents and policies. If your affiliates use our Services, you represent and warrant that you have the authority to bind those affiliates and agree that you will be liable if your affiliates do not comply with these End-User Terms.
1. USE OF THE SERVICES.
1.1. Use of the Services. We hereby grant you a limited right to use our Services only for business and professional purposes as permitted in these End-User Terms. As used herein, “Services” means any of our commercially available software-as-a-service offerings and/or audio services, as further detailed in the Service Descriptions at https://www.goto.com/company/legal/service-descriptions. Certain of our Services are regulated telecommunications Services, which are subject to the additional terms set forth in the attached Telecom Addendum (attached as Exhibit A).
1.2. Limitations on Use. You agree not to: (i) modify, prepare derivative works of, or reverse engineer our Services; (ii) knowingly or negligently use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iii) transmit through the Services any harassing, indecent, obscene, or unlawful material, which includes conducting any actual or attempted illegal or fraudulent “robocalling” activities; (iv) market or resell the Services to any third party; (v) use the Services in violation of applicable laws or regulations; (vi) use the Services to send unauthorized advertising or spam; (vii) harvest, collect, or gather user data without lawful basis (e.g., consent); (viii) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (ix) use the Services to commit fraud or to misrepresent the origin of a communication or the identity of its sender. We reserve the right to suspend or terminate your access to the Services if: (a) you, your users, or your attendees use the Services in violation of these End-User Terms or in a manner that is likely to cause harm to us or (b) if we have reasonable grounds to suspect any illegal, fraudulent, or abusive activity on your part. You agree to immediately notify us of any unauthorized access to the Services and terminate such access to the extent within your control.
1.3. Changes to Services. We reserve the right to enhance, upgrade, improve, or modify features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality (as set forth in the Service Descriptions) or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
1.4. Proprietary Rights and GoTo Marks. GoTo and its licensors retain all proprietary right, title, and interest in the Services, including our name, logo, and other identifying marks (together, the “GoTo Marks”) and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name, or social media account name or handle which incorporates in whole or in part the GoTo Marks or is similar to any of these.
2.1. Termination. GoTo may, in its sole discretion, terminate these Terms and the Services subscription if: (i) you breach these End User Terms; (ii) you are found to have falsified any required registration information or GoTo is otherwise unable to verify or authenticate information you provided to GoTo upon registration; or (iii) GoTo decides, in its sole discretion, to discontinue offering the Service to its users.
2.2. Effect of Termination. If these End-User Terms, an applicable agreement, or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that upon request, we will provide you with limited access to the Services for a period not to exceed thirty (30) days, solely to enable you to retrieve your Content from the Services. We have no obligation to maintain your Content after that period. To the extent permitted by applicable law, neither party will be liable for any damages resulting from termination, and termination will not affect any claim arising prior to the effective termination date.
3. YOUR CONTENT.
3.1. Your Content. You retain all rights to your files, documents, recordings, chat logs, transcripts, and similar data that we maintain on your or your users’ behalf, as well as any other information you or your users may upload to your Service account in connection with the Services (your “Content”). We do not own or license your Content, however, we may use, modify, reproduce, and distribute your Content as needed to provide and operate the Services. We will not view, access, or process any of your Content except as authorized or instructed by you or your users (if applicable) or as required to comply with applicable law or valid government request. You warrant that you have the right to upload or otherwise share your Content with us and that doing so does not infringe any rights of a third party. You are solely responsible for maintaining lawful basis for the collection, use, processing, and transfer of Content and to provide notice or obtain consent from data subjects as legally required. Both you and GoTo agree to apply reasonable technical, organizational, and administrative security measures to keep Content protected in accordance with industry standards.
4. COMPLIANCE WITH LAWS. When using the Services, you agree to comply with all applicable laws, rules, and regulations including, but not limited to, export, privacy, and data protection laws and regulations. If you use any Service to record audio, video, or other data, you are solely responsible to comply with applicable laws. You hereby represent that you are not subject to government sanctions or named on any U.S. or other government denied-party list. Further, you shall not permit your users to access or use any Service or Content from a U.S. embargoed country or otherwise in violation of any U.S. export law or regulation. Where required to fulfill our legal obligations under applicable law, we will cooperate with local, state, federal, and international government authorities with respect to the Services. Notwithstanding any other provision in these End-User Terms, we may immediately terminate your access to the Services if we have reason to believe that you have failed to comply with applicable law.
5. INDEMNIFICATION. You will indemnify and defend GoTo against any third-party claim resulting from a breach of Section 1.2 or 3.1 alleging that any of your Content infringes upon any third-party patent or copyright or otherwise violates a trade secret of any party, and you agree to pay our reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any such claim and provide reasonable cooperation to you in order to defend the claim. You will reimburse us for reasonable expenses incurred in providing any such cooperation or assistance. You will have full control and authority over the defense and settlement of any third-party claim except that: (i) any settlement requiring us to admit liability requires our prior written consent, which shall not be unreasonably withheld or delayed; and (ii) we may join in the defense, with our own counsel and at our own expense.
6. WARRANTIES. WE WARRANT THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. WE DO NOT REPRESENT OR WARRANT THAT: (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; (ii) OUR SERVICES WILL MEET YOUR REQUIREMENTS; OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS IN THOSE JURISDICTIONS.
7. LIMITATION ON LIABILITY.
7.1. LIMITATION ON INDIRECT LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR OTHER SUCH DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, OR (v) COSTS OF RECOVERY, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR SUCH DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMERS IN THOSE JURISDICTIONS.
7.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FORYOURBREACH OF SECTION 1.2 OR 3.1 AND YOUR INDEMNIFICATION OBLIGATIONS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNT YOU PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
8. ADDITIONAL TERMS.
8.1. Free Services and Trials. If you are using the Services on a trial or promotional basis, we provide the Services “AS IS” and without warranty or indemnity, and all other terms apply. We may modify or discontinue any trials or promotions at any time without notice.
8.2. Third Party Services. Our Services may provide the capability for you to link to or integrate with third-party sites or applications separately accessed by you. We are not responsible for and do not endorse such services. You have sole discretion whether to purchase or connect to any third-party services and your use is governed solely by the terms for those services.
8.3. Beta Services. You may be offered access to features or services before their general release (“Beta Services”). We do not guarantee that any Beta Services will be made generally available. You understand and agree that Beta Services may contain bugs, errors, and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is voluntary, and we have no obligation to provide technical support for Beta Services and may discontinue them at any time in our sole discretion and without prior notice to you. Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory, or otherwise for the Beta Services. If you are using Beta Services, you agree and acknowledge that, as a condition of your participation, you will receive related correspondence and updates from us. If you provide feedback about the Beta Service, you agree that we own that feedback. For the Beta Services only, the terms in this section 8.3 supersede any conflicting terms and conditions in these End-User Terms, but only to the extent necessary to resolve conflict.
8.4. Security Emergencies. If we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Services. If we do, we will take action designed to promptly resolve any security issues and restore the Services.
8.5. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, operating life support or weapons systems, navigating aircraft, or use in environments requiring fail-safe controls.
8.6. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
8.7. Entire Agreement; Order of Precedence. These Terms, including any applicable DPA, set forth the entire agreement between you and GoTo relating to your use of the Services. No third party may modify these End-User Terms. If there is a conflict among these Terms, the DPA (if applicable), and the Service Descriptions, the documents will govern in that order. We may update these End-User Terms from time to time and will notify you by publishing such updated terms at https://www.goto.com/company/legal/end-user-terms. To the extent allowed by applicable law, your continued access to and use of the Services constitutes your acceptance of any update to these End-User Terms.
8.8. Assignment. Neither party may assign, in whole or in part, its rights or delegate its duties under these End-User Terms, including the Telecom Addendum, without the other party’s prior written consent, unless such assignment is made to an affiliated entity or as part of a corporate reorganization, consolidation, merger, acquisition, divestiture or sale of substantially all of its business or assets to which these End-User Terms relate, in which case consent shall not be required.
8.9. General Terms. If any part of these End-User Terms is deemed to be unenforceable, this will not affect any other terms. Failure to enforce any right under these End-User Terms will not waive that right. These End-User Terms create no partnership, agency, fiduciary, or employment relationship between the parties and no beneficiary rights for a third party. The parties accept electronic signatures or other electronic means of agreement. No party will be responsible for any delay or failure to perform under these End-User Terms due to force majeure events (e.g., natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
8.10. Choice of Law; Location for Resolving Disputes; Notices. The governing law, location for resolving any disputes related to these End-User Terms, and address for notices to us are as set forth at https://www.goto.com/company/legal/contracting-entities. Notices to us must also include a copy to our Legal Department, 333 Summer Street, 5th Floor, Boston, Massachusetts 02210 USA. We may provide notice to you at your physical address, email address, or via electronic message within the Services or on our websites.
8.11. Survival. The provisions of Sections 3.1 (Your Content), 5 (Indemnification), 7 (Limitation on Liability), 8.6 (No Class Actions), and 8.10 (Choice of Law; Location for Resolving Disputes; Notices) survive any termination of these End-User Terms.
In addition to the End-User Terms set forth above, the following terms and conditions apply to your use of any regulated telecommunications services that GoTo may make available, including but not limited to, GoTo Connect and any applicable GoTo Connect add-on services (“Telecom Services”):
1. ORDERS AND PAYMENT. You may order Telecom Services from us using paperwork provided by a partner authorized to offer Telecom Services on our behalf (“Telecom Sales Partner” or “TSP”) which defines commercial terms such as price, quantity, the start and duration of the subscription period, and, where applicable, parameters regarding auto-renewal periods (the “Telecom Sale”). Invoicing and payment for Telecom Services are facilitated by the TSP. If we do not receive timely payment through the TSP, in order to ensure uninterrupted service, we may invoice or otherwise collect amounts due from you directly. Telecom Sales are subject to our acceptance and verification.
2. REGULATED SERVICES. You understand and acknowledge that the Telecom Services are regulated telecommunications services and are provided to you by GoTo. We may suspend, terminate, or discontinue our provision of Telecom Services as stated in the End-User Terms, including this Telecom Addendum. We may also suspend or terminate your access to Telecom Services if we have not received timely payment or, as applicable, information or documentation required to provision the telecommunications components of your Service (e.g., end-user registration details to assign local numbering resources), but will, where reasonable or required by applicable law, give you, directly or via the TSP, notice and an opportunity to cure before we do.
3. REGIONAL TERMS. Additional terms, specific to your country and/or region, may apply to your use of our Telecom Services as set forth in our Regional Supplement which is available at https://www.goto.com/company/legal/regional-supplement and which is incorporated as part of this Telecom Addendum.
4. WARRANTIES. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY, IF ANY, UNDER THE WARRANTIES IN THE END-USER TERMS WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES OR TO TERMINATE THE NON-CONFORMING SERVICES OR THE APPLICABLE ORDER AND PROVIDE A PRO-RATED REFUND OF ANY FEES WE HAVE RECEIVED IN ADVANCE FOR THE PERIOD BEGINNING ON THE DATE YOU NOTIFY US OF THE NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. WHERE APPLICABLE, WE MAY COORDINATE SUCH A REFUND THROUGH THE TELECOM SALES PARTNER.
Revised: August 26, 2022